The Conservative government has moved to double the maximum penalty proposed for rioting while wearing a mask or concealing your identity to 10 years.

OTTAWA—The Conservative government has moved to double the maximum penalty proposed for rioting while wearing a mask or concealing your identity to 10 years.

In what appears to be an admission that a private member’s bill can create two different penalties in law for the same activity, the government introduced at a committee new wording that mirrors an existing provision in the Criminal Code.

A 10-year maximum jail term would apply in the case of a “riot,” but in the case of an “unlawful assembly” the maximum penalty would be five years in jail, said Robert Goguen, parliamentary secretary for Justice. Goguen said in an interview that with the amendment, the bill now recognizes “one incident is far more serious than the other.”

The bill does not define riot, nor is it defined in the Criminal Code, but Goguen said that it is defined in case law — in other words, by past decisions of courts.

Goguen said the amendment was necessary because s. 351 of the Criminal Code already makes it an offence to intend to commit a crime with one’s face “masked,” “coloured” or “disguised” and provides for a maximum 10-year jail term.

More significant, perhaps, the existing prohibition in the Criminal Code is a “specific intent” offence that is more difficult to prove, while the bill creates a “general intent” offence which would be easier to prove in court, and a better tool for police, said Goguen.

“The whole idea of this bill is to give them additional arrest powers.”

He dismissed Opposition concerns that the bill goes overboard: “This is not a police state.”

Officers at a riot are generally outnumbered, but “the most highly trained police” are the ones who manage crowds; they communicate with protestors to signal when an assembly has been declared a riot; and they “will use the proper discretion” in arresting those who are “doing the criminal offences, throwing the Molotov cocktails, smashing windows or looting.”

“They’re not going to get the person who’s just standing there who’s wearing a mask and is doing nothing. Why would they waste their time or resources to arrest people who are just sitting there who are trying to express a lawful opinion? It doesn’t work that way,” Goguen said.

He said that if the police make a mistake, Crown attorneys will exercise proper discretion, and if the Crown is “off-base, there’s the courts.”

NDP justice critic Francoise Boivin said in an interview the bill risks curtailing the rights of lawful protestors who unwittingly find themselves caught up in a demonstration that gets derailed into an unlawful assembly or riot by troublemakers.

The committee heard police officers and Conservatives opine that they hoped it will deter people from going to gatherings wearing any type of mask — which Boivin said is their right under Charter guarantees of free expression.

“A criminal infraction should always be aimed at the guilty, at people who commit crimes, not at innocent people who want to go and express themselves,” said Boivin. “Otherwise just throw the damn Charter of Rights down the drain.”

The NDP and Liberals said the bill was unnecessary given the existing law. An NDP amendment to reflect that was defeated.

“This is nothing more than overkill,” Liberal MP Judy Sgro told the committee.

The one-page private member’s bill sponsored by Conservative Blake Richards (Wild Rose) passed clause-by-clause reading and now heads back to the House of Commons for third reading.

This week, Justice Minister Rob Nicholson offered the government’s support for Richards’ bill. But on Tuesday, Nicholson was unable to explain how its provisions would apply in the case of a demonstrator who protests in front of the Syrian embassy and doesn’t want their identity known to a regime that has launched retaliations against its critics.

He dodged the direct question, saying “the courts have interpreted and have dealt with the whole question on lawful assembly and rioting and, again, it’s very clear. This is an addition, a stand-alone provision that’ll deal with people who are participating in that kind of activity and concealing their identity.”

Pressed further, the justice minister’s advice was blunt: “Don’t participate in riots. That’s against the law in this country and, again, if you are concealing your identity without lawful excuse, then there will be a separate offence in the Criminal Code for that there.”

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